Briefs on Whether the Second Amendment Should Apply to the States Via the Fourteenth:

This is the "incorporation" question, and it's raised in Nordyke v. King, a case now pending before the Ninth Circuit; the pro-incorporation and the anti-incorporation briefs are now both available.

Note, though, that the issue in this case relates only to a ban on possession on government-owned nonresidential property: Alameda County banned firearms possession in county-owned "parks, recreational areas, historic sites, parking lots of public buildings (the State prohibits gun possession within the same buildings), and the County fairgrounds." The Ninth Circuit might well conclude that it need not decide whether the Second Amendment is incorporated, because even if it is incorporated it doesn't apply to the government's restrictions on the use of its own nonresidential property.

I'm not sure whether such a result would be right or wrong, but I want to flag the possibility that the Circuit will reach it. The First and Fourth Amendments often (though not always) apply differently to the government as proprietor than to the government as regulator of what happens on private property; likewise as to the right to an abortion; the circuit may well hold that the Second Amendment does so, too, and that it gives the government broad authority to control gun possession.

Note, by the way, that it's also possible that there may be a right to possess a gun in self-defense on government property, but no right to possess a gun for purpose of selling it. (The right to keep and bear arms necessarily includes the right not to have the government stop everyone from selling you such guns, just as the right to use contraceptives includes the right not to have the government stop the sales of contraceptives. But it need not include the right to buy a gun on government property, just as the right to have an abortion does not include the right to get an abortion in a county-owned hospital.)

The Ninth Circuit might well conclude that it need not decide whether the Second Amendment is incorporated, because even if it is incorporated it doesn't apply to the government's restrictions on the use of its own nonresidential property.

This is infuriating. First, the SCOTUS doesn't accept any 2A certs for 75 years, allowing the circuits to do as they please. Then, Scalia doesn't announce a standard of review in Heller because he claims that the law in question fails any such standard. Now, we want a simple test case that goes to SCOTUS to decide incorporation and they are going to do the same dodge. I understand the abstract notions of 'case or controversy' as it applies to jurisdiction but it ought to yield, in some practical sense to getting important legal doctrines settled. This ambiguity is killing me.

Incidentally, and I don't mean to threadjack, while SCOTUS is given discretion on cert they ought to at least follow their own rules which provide in relevant part (Rule 19(1)(b)):

... whether a Court of Appeals has decided an important question of federal law which has not been, but should be, settled by this [C]ourt

. The dual questions of incorporation and standard of review in the 2A (which are highly intertwined, IMO -- the more strict the standard, the more likely it is to be incorporated) are, in every sense questions of federal law that should be decided by the court.

I fail to see how the Second or any of the first eight amendments can be incorporated against the states, and to a more extreme degree, against municipals. The 14th doesn't say anything about the second amendment, just the 5th. The same guys who adopted it could find no rational to apply the first amendment establishment clause against the states and were forced to attempt amend the constitution to do so.

No court before the adoption of the 14th ever said the privileges and immunities belonging to United States citizens included any of the first eight amendments. It was universally agreed by all involved that the 14th added nothing new to the privileges and immunities of U.S. citizens... and these P&I's had nothing to do with citizens of under their own state constitutions.

Before Heller, this same panel of judges made a ruling in this same case that said they might uphold the 2nd Amendment if they weren't bound by precedent. Now that we have Heller, the precedent is void. This panel seems to be pretty supportive of the 2nd Amendment.

The real problem is that Alameda will probably repeal the regulations just before the court returns their opinion, and thus forestall setting precedent they dislike until they can get more liberal judges on the Supreme Court to stop incorporation. The only laws that will make it to the Supreme Court for incorporation with the court's current composition, are laws that the gun banners can't stand to live without in the interim.

I see no reason to change my prediction, which is that I think that the 2nd Amendment will be incorporated. I suspect that the Supreme Court will take a clean case, probably from a jurisdiction that has a similar gun law to D.C.'s extremely restrictive one.

I think their First Amendment arguments were stronger. There really is no alternative forum comparable to the county fairgrounds. They're in a formerly rural, now suburban area by the way, not Downtown Oakland.

I wish they hadn't compared gun shows to the Highland Games. Alameda County's easiest way out is to ban weapons at the Highland Games.

Don Kilmer is bringing this appeal as a labor of love, I'd guess. He is a graduate of a Calbar accredited law school by the way.

The order we are appealing from is a denial of a motion to amend our complaint to add a Second Amendment claim. In order to deny leave to amend (with prejudice BTW) a complaint under the very liberal federal pleading rules, there can be no facts under which plaintiffs can state a claim.

The trial judge denied leave to amend under the holding of Hickman v. Block. (i.e., individuals don't have standing under the Second Amendment.) Assuming arguendo that we ultimately lose the 2A claim because counties can ban gun shows on county property (a proposition that is not a foregone conclusion) the court still has to address the 2A incorporation issues in the context of a motion to amend a complaint.

The First Amendment issues were briefed in a prior filing, the briefs posted herein are supplemental briefs ordered by the court after Heller came down in June.

Also, the "no gun sales on county property" argument doesn't work for two reasons: (1) Nordyke v. Santa Clara County, 110 F.3d 707 (1997); and (2) In this case, Alameda has conceded that they don't have the power (nor have they tried) to stop the sales of guns on county property.

In fact the county has taken the obtuse position that they are not even trying to ban gun shows, they just insist that gun shows (and sales) take place without guns actually being present at the gun shows or during the sale.

The First amendment reads (in part), "Congress shall make no law . . . ." so it follows that some magic sauce is needed to make it apply to an entity other than Congress, like a state university, right?

But the Second reads (in part), "The right of the people . . . shall not be infringed," without any attempt to enumerate who is constrained from attempting to enact any such infringement.

So why does the Second need help to be "incorporated." Can you explain, please?

Aldridge, you can keep beating your 14A dead horse, or you can accept that the SCOTUS has consistently and over decades laid out a different doctrine. I'm concerned with what the actual SCOTUS will do with the doctrines that they actually follow -- you can check your fantasy SCOTUS at the door.

sagoldie, historically, the provisions of the BoR were universally understood only to apply to the federal gov't, even when phrased in language that would not seem to implicate Congress. The 4A, for instance, was not applied to the states until 1967 -- reversing an earlier ruling that held that it was not incorporated.

1. The Bill of Rights was held inapplicable to the states, in its entirety, under 19th Century pre-civil war caselaw. And it actually makes some sense; while I know the provisions other than the First Amendment don't refer to Congress, it's pretty clear that, for instance, the grand jury clause wasn't intended to bar the states from bring charges on an information or criminal complaint. So, after the 14th Amendment was enacted, what parts of the Bill of Rights would be incorporated became a live issue.

2. Even if your view were accepted, it would still take a court decision to announce it. So, even then, the Second Amendment would need "help" to be incorporated.

Also, part of the modern drive towards incorporation has been the somewhat less than stellar quality of the state high courts. Here in Mass, for instance, they read our state RKBA right out of the place -- if we are to have an RKBA, it's going to be federal or nothing.

The federal bench is a far more reliable guarantor of individual rights than the state bench in almost all regards (VT search and seizure law is one exception I can think of off the top of my head).

And the indisputable truth is that the SCOTUS has roundly rejected your line of reasoning. Learning about the law is an exercise in applying standing doctrine to open questions. If you can't contribute to a discussion about how the actual courts are going to decide actual cases then exactly is the point?

Also, you might be shocked to find out that they haven't 100% followed my preferred interpretations either.

I fail to see how the Second or any of the first eight amendments can be incorporated against the states, and to a more extreme degree, against municipals.

If, for the sake of argument, one granted that incorporation of the bill of rights against the states is valid, why would granting incorporation against "municipals" (municipalities?) be "more extreme." Aren't municipalities creatures of the state and isn't a state forbidden from delegating/assigning powers it does not possess?

Hardly, Oren... In fact, Eugene agreed the court has not factually evaluated the incorporation doctrine. Remember it all started when a divided court "assumed" the first amendment might be made applicable against the states via the fourteenth. The court never discussed how that might be so or what evidence there was to support such an "assumption." Sen. Reverdy Johnson said 3 years after the adoption of the fourteenth that it said nothing about the Second Amendment.

OK Oren, lets take the court as it exists now. Scalia bent over backwards to take an originalist approach to the second amendment. In light of that, do you think he (or Thomas) will now blithely embrace incorporation. The only way I can see that happening is if they find some plausible originalist argument why the second amendment constrains the states, and I can't see them stepping up to the plate and announcing "implicit to the idea of ordered liberty: or some such BS.

The libs, however, will be perfectly content to hamstring the second amendment in any way they can. So they will have no problem voting against incorporation even though ordinarily they would have a knee jerk reaction in favor of any sort of incorporation.

As a result, unless Scalia decides to show just how much of a hypocrite he is (and I admit that is possible), I would think that at best there might be a couple of votes in favor of incorporation.

This is an issue where the irony may end up being very startling. If the Court decides in favor of incorporation, it will have to do so with the support of self-proclaimed originalists. If it decides against incorporation, it will be in part because of the complete lack of principles of Stevens/Souter et al...

The only way I can see that happening is if they find some plausible originalist argument why the second amendment constrains the states, and I can't see them stepping up to the plate and announcing "implicit to the idea of ordered liberty: or some such BS.

1. Incorporation's pretty well accepted. There's every reason to think that Scalia, and probably Thomas, will give it stare decisis effect.

2. In any event, there's plenty of historical evidence that the Second Amendment was intended to be incorporated by the Privileges and Immunities Clause of the 14th Amendment.

First off, Scalia has shown pragmatism, voting for logical applications of doctrines with which he disagrees. He did so in Raich and in Hudson, he acknowledged in a single line (it was that uncontroverted) that the 4A was incorporated against the states. Similarly, in his dissents against the various obscenity/1A cases, he never argues against incorporation of the 1A.

Long story short, I see no reason why he wouldn't support incorporation of the 2A. Hopefully, he'll have the votes to make it stick.

Incorporation of the 4th amendment is well established. Incorporation of the second amendment is not established at all. Of course, there are parts of the bill of rights that have not been incorporated at all -- civil jury trials for example. So it's not simply going to be a matter of following precedent. And holding your nose for a doctrine that has been established for a long time is quite different than extending the same doctrine in a new area.

Raich is the case that makes me think that Scalia might just swallow his principles to get the result he wants. Because its pretty clear he did the same sort of thing there. So you could be right, but if you are, it will be because Scalia is much less principled than he proclaims himself to be.

Do you want the 2A to become incorporated because you think its the correct interpretation of the Constitution, or simply because its the policy you favor?

In order to incorporate the second amendment the court would have to overturn Cruikshank and Presser v. Illinois.

On the other hand, Presser says, "the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government". If citizens are barred from carrying their guns onto government property, including courthouses, then how can they "maintain() the public security" and do their duty?

I propose that the fact that changes to our society may have rendered these duties superfluous does not alter the fact that neither state or federal governments have the power to interfere with the people's ability to perform these duties.

And holding your nose for a doctrine that has been established for a long time is quite different than extending the same doctrine in a new area.

2A would be a relatively straightforward application of the current doctrine on incorporation. With only one exception, it's been a virtually automatic process -- what the BoR forbids to Congress it forbids the States.

Back to the original topic, does anyone have some thoughts on Alameda County's brief? They seem to take a rather unusual approach, re-interpreting 2A (again) to place police power with the states, instead of codifying a pre-existing individual right.

sagoldie, historically, the provisions of the BoR were universally understood only to apply to the federal gov't, even when phrased in language that would not seem to implicate Congress.

If you had said "usually" or "generally" understood, you would have been correct. But some state supreme courts after Barron v. Baltimore (1833) and before the 14th Amendment, recognized that the Bill of Rights limited state power as well--and some of those decisions were specifically applying the Second Amendment to strike down state gun control laws. See Nunn v. State (Ga. 1846) for one of several such examples. In addition, there are a surprising number of antebellum period statements that show that at least some Americans considered "privileges and immunities" to include protection of the Bill of Rights against state laws. They have been mistaken, but this isn't a new creation.

[T]he Second Amendment [i]s a guarantee that the federal government will not interfere with the individual's right to bear arms for self-defense. ... Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that. ... [T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.

--Justice Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)

The County dug up that Scalia quote from his book on constitutional interpretation. They repeat it two or three times in their brief. Of course a judge's extra-judicial writings are not law. So the quote is not intended as constituional authority, but as a way to preempt a conservative justice from taking a position the government opposes by trying to pre-load the hypocricy argument. I don't think that Scalia upholding 14th Amendment Due Process incorporation of the Second Amendment would make him a hypocrite, assuming the issues even gets to SCOTUS.

"Arms control" is just another word for regulation; and regulation does not mean prohibition. Nobody, not even the NRA, makes the argument that guns are not an appropriate item for regulation. "But the enshrinement of constitutional rights necessarily takes certain policy choices off the table." [from the Heller conclusion written by Scalia] That includes irrational prohibitions of the possession and sales of guns at gun shows.

It is clear to me that the County's lawyers have not written a brief to persuade the court. It looks rather like they addressed their brief to their clients. It reads like a homily to gun control activists lamenting the Heller decision who wish it wasn't the law now; but that approach does nothing to address the 14th Amendment issues. They ignore that even their most reliable judge on Second Amendment issues in the Ninth Circuit thinks that 2A incorporation is a forgone conclusion. See: Silveira, 312 F.3d at 1067.

Scalia said above there is "no limitation" on arms control. If there is no limitation there can be no limitation in prohibition in controlling arms just like there can be limitation to prohibit whatever under the ruse of regulating commerce.

Take a look at the Firearm Owners Protection Act of 1986 for an instance when Congress prohibites States from interfering in the interstate travel of firearm owners traveling with their guns, even if the firearm was illegal in the state the shooter was passing through.

Take a look at the Protection of Lawful Commerce in Arms Act of 2005 in which Congress prohibits federal and state courts from entertaining frivolous lawsuits designed to bankrupt the firearms industry.

Neither act mentions the commerce clause, but both specifically invoke the Second Amendment and declare it to be an individual right.

An honest reading of the 14th Amendment ratification debates and the debates supporting the Freedmans' Bureau Act practically compel support for the proposition that the Second Amendment was specifically intended to extend the "right to keep and bear" arms to newly freed slaves against state and local governments.

Of course it is possible to argue that the South's point of view wasn't well represented in the post-Civil War Congress. That is why state and local goverments in the South enacted the "black codes." Yes, state and local goverments have an ugly history of disarming victims with the wrong skin color and/or the wrong ideas; all the more reason history, constitutional case law and good policy are on the side of Second Amendment incorporation.

Quit reading the holdings of Cruikshank and Presser and read the facts. The Supreme Court's failings in those two cases are as repugnant as the Dred Scot case.

The hypocricy allegation is more appropriately made against modern liberals who want to constrict rights they don't like and expand those they endorse. Go back and read Kozinki's dissent from rehearing en banc in the Silveira case.

And where is the constitutional text for the following rights: privacy, contraception, abortion, parent/child relationship, marriage, sex (of any kind), etc....

A principled liberal (like Stephen Reinhardt) accepts the expansion of rights, once it is recognized as a right. Take a look at his opinion in Silveira, 312 F.3d at 1067.

So at last count we have: the Executive Branch, Congress, and now the Judiical Branch (of the federal govt.) agreeing with more than 3/4 of the States that the Second Amendment protects an individual's "right to keep and bear arms."

14th Amendment due process incorporation of the Second Amendment should be a foregone conclusion.

Don Kilmer said: "An honest reading of the 14th Amendment ratification debates and the debates supporting the Freedmans' Bureau Act practically compel support for the proposition that the Second Amendment was specifically intended to extend the "right to keep and bear" arms to newly freed slaves against state and local governments."

To keep and bear arms for what? Congress feared blacks would be displaced or abused by white militias and they wanted militia laws to allow for the arming of black militias so they could better protect themselves. The U.S had its own black prohibition to bear arms that they had to remove in 1867.

And it worked... many all black militias were formed under state militia laws.

You keep wanting to argue that Heller was wrongly decided. Get over it.

Glenalxndr's point is the more relevant one:

Back to the original topic, does anyone have some thoughts on Alameda County's brief? They seem to take a rather unusual approach, re-interpreting 2A (again) to place police power with the states, instead of codifying a pre-existing individual right.

You also keep missing the point that the 14th Amendment contains language that permits Congress to enact legislation to enforce whatever rights the 14th Amendment now protects against state abridgments.

Is it necessary to list all of the legislation that Congress has enacted that limits state power vis-a-vis the individual rights protected under the federal bill of rights:

How about to keep the Klan from lynching their loved ones in the dead of night? Even assuming that a black militia was "a" purpose of the post-civil war legislation outlined above, self-defense was/is an equally valid purpose. Maybe a more important purpose.

And as a practical matter, how do you propose to stop hooded murderers from lynching a man at the nearest tree, while you call for a muster of the local militia so you can retrieve your government issued rifle?

BTW, those black militia policies didn't really help the victims in the Cruikshank case, did they?

Don, The Civil Rights Act of 1870 and 1871 were struck down by the court. The 1866 civil right bill only provided for the enforcement of the Art. IV, Sec. II and only operated on citizens of the United States and not citizens under their own State constitutions.

Sen. Reverdy Johnson, considered one of the most ablest constitutional lawyers among congressional members involved in the adoption of the Fourteenth Amendment, was asked during the Joint Select Committee on the Condition of Affairs in the Late Insurrectionary States in 1871 the following:

"[If] a militia company organized in York County, a combination and conspiracy to rob the people of their arms, and to prevent them from keeping and bearing arms furnished to them by the State government. Is not that a conspiracy to defeat the rights of the citizen secured by the Constitution of the United States and guaranteed by the fourteenth amendment?"

Sen Johnson replied:

"What does the Constitution of the United States say about bearing arms? Nothing. What does the fourteenth amendment say upon the same subject? Nothing. The latter is as silent upon the topic as the former, and if the former cause for silence does not cover such a case as this, the latter, for the same reason, does not embrace it. … Has not the State in a case like that the right to take arms from the militia company? I think there can be no doubt of that. And if the right exists to take the arms out of their hands in such a case as that, then it is because the right to bear arms is not a right given by the Constitution of the United States; but exists under the local law of the State."

Also, pretty interesting woman were never allowed bear arms, but they could freely purchase firearms and keep them. Get it?

Don, The Civil Rights Act of 1870 and 1871 were struck down by the court. The 1866 civil right bill only provided for the enforcement of the Art. IV, Sec. II and only operated on citizens of the United States and not citizens under their own State constitutions.

I thought we were discussing Congressional intent, not current legal status of Reconstruction legislation.

And went on to say:

The later civil rights bills mentioned used the commerce clause!

Yes, and that was real power grab of the Article I branch. Congress had/has the power under Amendment 14 to do all those things it has done under a "commerce clause" pretext. But here I admit that I am discussing policy/philosophy and not law.

J. Aldridge: Sen. Reverdy Johnson, considered one of the most ablest constitutional lawyers among congressional members involved in the adoption of the Fourteenth Amendment, was asked during the Joint Select Committee on the Condition of Affairs in the Late Insurrectionary States in 1871 the following

Not so. Johnson was not a senator at that time and did not testify before that committee. The report of the Joint Select Committee included transcripts from the South Carolina KKK trials, and Johnson was one of the defense attorneys representing the Klansmen. The question you quoted was not posed to Johnson directly, but was part of the district attorney's argument. Johnson opposed the theory of incorporation as part of the defense theory, which was to reject the idea that the Klansmen could be guilty of conspiring to deny blacks various rights because those rights were not incorporated by the 14th Amendment.

Also, you mention that Johnson was "considered one of the most ablest constitutional lawyers among congressional members involved in the adoption of the Fourteenth Amendment," but failed to mention who holds that opinion. Johnson was included in the Joint Committee on Reconstruction, which drafted the amendment, as the token Democratic senator, and he was constantly in the minority on the issues as well as in party identification. He objected to the inclusion of the privileges and immunities clause in the amendment, claiming "I do not understand what will be the effect of that." So maybe not the best person to cite on the intent behind the 14th Amendment.